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On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Provision of Emergency Maternal Protection for Lactating Mothers Act (PUMP Act), giving Expanded federal protections for both workers and breastfeeding workers.
Maternity Fairness Act
PWFA establishes a legal obligation for employers to provide reasonable accommodation for pregnant workers. Under the new law, which will not come into effect until June 2023, employers with 15 or more employees will not be able to temporarily qualify as physically or mentally restricted due to pregnancy, maternity, or related conditions. Reasonable accommodation must be provided to employees and applicants with Employees and applicants are considered “qualified” if they are able to perform the essential functions of the employment position with or without reasonable accommodation. If the inability to perform the required function is temporary, the required function is likely to be performed in the near future, and the inability to perform the required function is reasonably manageable, the individual is still “eligible.”
The PWFA, like the Americans with Disabilities Act (ADA), requires employers to provide reasonable accommodation, as long as it does not impose an undue hardship. PWFA incorporates the ADA concept of an “interactive process”. This is a good faith discussion between an employer and an employee to identify appropriate reasonable accommodation. Under the new law, employers will be prohibited from requiring qualified employees or applicants to accept accommodation other than the accommodation they arrived through the dialogue process. Employers may not require employees to take paid or unpaid leave if another reasonable accommodation is provided. Retaliation against an eligible employee or applicant for requesting reasonable accommodation under the law is also prohibited.
Previously, under federal law, most courts have held that pregnancy is not considered a disability for entitlement to reasonable accommodation under the ADA. Rather, employers should ensure that an individual’s pregnancy, childbirth, or related medical conditions reach a level of disability under the ADA, or that consideration is made for other workers in similar circumstances who are not pregnant. Examples of accommodations that may be requested under the PWFA include providing additional bathroom breaks, reduced lifting requirements, family medical leave Providing leave to employees who do not qualify for leave under the Act (FMLA) or other leave policies, and providing various office equipment (e.g., providing chairs to employees who normally need to stand) .
How to provide emergency maternal protection for breastfeeding mothers
The PUMP Act, which amends the Fair Labor Standards Act (FLSA) (effective immediately, except for certain changes relating to remedies), requires employers to (1) provide employees with reasonable breaks to express time must be provided. and (2) a place other than the bathroom, shielded from view and intrusive, where the employee can express breast milk.
While the Affordable Care Act of 2010 (AFCA) amended the FLSA to provide non-exempt employees with these protections, the PUMP Act expands protections to: all employee, non-exempt and exempt, breast milk should be expressed unless specifically excluded. (Some workers in the transportation industry are exempt from the law.)
Employers are generally not required to provide paid leave under these amendments. However, the Breast Pump Act re-emphasizes the FLSA’s principle that time spent expressing milk is considered “work time” if the employee is not completely relieved of duty during breaks. If an employee continues to work during a break or is interrupted, non-exempt employees must be paid for the entire break (exempt employees receive full weekly wages regardless of breaks). continue to receive).
In particular, the Pump Act does not apply to employers with fewer than 50 employees where certain requirements under the Act create undue hardship.
PWFA and pump
Under both laws, workers can file private lawsuits against their employers for violations of the law. PWFA requires that employees exhaust all administrative remedies first.
Employers should be aware that many state and local laws already provide similar or greater protection and consideration requirements for pregnant and breastfeeding workers. These laws are not anticipatory of state and local laws that provide more generous protections. Moreover, at the federal level, the Pregnancy Discrimination Act of 1978, amending Title VII, already prohibits discrimination in employment based on pregnancy, childbirth, or related medical conditions.
Many employers may have policies regarding pregnancy, accommodations, and nursing workers, but employers should review those policies to ensure they comply with these new federal laws. , should be updated as needed. In addition, employers should ensure that managers and supervisors are trained on how to handle pregnancy accommodation requests and breast pumping requests in the workplace.
The content of this article is intended to provide a general guide on the subject. You should seek professional advice for your particular situation.
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